Delayed action

White Coat sums up a recent jury verdict: “Obstetrician ordered to pay $3 million to patient born with cerebral palsy … 18 years ago.” The doctor, from Glens Falls, N.Y., “has $2 million in insurance coverage and may have to cover $1 million of the verdict himself,” according to the story. Statutes of limitations in medical malpractice actions are often “tolled” (suspended) until a child reaches the age of majority, so that it is by no means unheard-of for families to file suit a decade and a half after a medical occurrence.

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A quick argument in favor of these long statutes relating to children. Particularly in cases of obstetrical malpractice, it often takes years before the true scope and extent of injury is known. Indeed, we have had many cases which came to us with the appearance of malpractice, but after a few years the child seemed to be doing fine, so we saved ourselves, the doctors, and their insurance company a lot of money, uncertainty, and aggravation by holding off a lawsuit and eventually deciding against it. Indeed, when we take these cases early on, one of the primary arguments that defendants make a trial is that the full extent of damages unknown, and the child might catch up and be fine within a few years.

Does it need to be 18 years? Maybe not. But it needs to be 6 years at a minimum, and more likely 12, or else we’re going to end up filing a lot more lawsuits that wouldn’t have been filed if we had been allowed to wait.

Statutes of limitation have their antecedents in British common law and have served a useful function for hundreds of years. Traditionally, the only type of matter that has no statute of limitations is murder. In recent years they have been extended to cover crimes against minors and certain tort cases such as medical malpractice. There have been suggestions that they be tolled to allow actions relating to slavery and the Holocaust. The problem is that witnesses die or become unavailable and evidence is lost over the passage of time, meaning defendants’ right to a fair trial can be compromised in both civil and criminal matters. Lengthy statute of limitation extensions have also led to junk science such as repressed memory syndrome evidence, the use of which has resulted in many unjust convictions in child sex abuse cases and extortionate applications in divorce actions.